Supercenter opponents sue Polson city council

A group of opponents to the Wal-Mart supercenter filed suit recently in district court against the Polson City Council, asking that the council's decision to grant a zoning change be overturned because the council abused its authority, the suit claims.

The suit, filed on behalf of Lake County First, Greg Hertz and nine other plaintiffs, lists all six council members as defendants, including the two who voted against the zone change request at the June 29 meeting.

At that meeting, the council voted 5-1 to approve a subdivision request, and 6-0 to annex the property into the city. After hours of public comments — mostly against the proposed supercenter — the council voted 4-2 to approve a zone change from low density residential to highway commercial, which Wal-Mart needed to begin construction. Councilman Mike Lies and Mark MacDonald both voted to deny the request.

Ken Donovan, who owns the 28 acres south of town on which the site is proposed, was given a copy of the suit last week but is not formally named in it. Donovan confirmed earlier this week that Wal-Mart still has a buy-sell agreement on the property, contingent on both the zoning request, and presumably the outcome of the suit.

Polson city attorney James Raymond said Monday afternoon that Polson officials are aware of the suit, but said he couldn't comment on it until he'd had more time to review it.

Greg Hertz was out of town and unavailable for comment prior to the Leader's deadline, and the plaintiff's attorney Martin King did not return a call seeking comment.

The suit notes that the city/county planning board recommended earlier in the year to deny the zoning request, and says the council "did not prepare or adopt any findings to support or explain the reasoning of their decision to reverse the [planning] Board's earlier denial of the zone change or to demonstrate that the change was supported by the relevant evidence and applicable law."

Many people expressed surprise at how quickly the council came to a decision on the zoning issue at the June 29 meeting, but Mayor Randy Ingram noted in an interview afterwards that council members had months to weigh the pros and cons of the issue. Ingram is not named in the suit, and did not vote on the zoning issue.

Specifically, the suit alleges that the zoning decision is illegal because:

There was insufficient evidence to meet zoning change requirements as outlined by applicable state law, and that the zone change also violates the Polson Development Code, the city's Master Plan, the county growth policy, and that it's inconsistent with the city's newly revised growth policy;

The decision by the council was "so lacking in fact and foundation that it is clearly unreasonable and constitutes an abuse of discretion";

Wal-Mart officials failed to present sufficient evidence to justify the zone change amendment, and that their request to be hooked up to city water and sewer violates the plaintiffs' rights to a clean and healthy environment, due to concerns about the impact on the sewer system and stormwater run-off;

And that the decision to annex the property into the city wasn't supported by sufficient evidence, either.

The suit asks the court to reverse the decision by the city council and reinstate the decision by the city/county planning board, although the planning board only had the authority to issue a recommendation on the zoning request.